I will ignore the negative, sarcastic comment we occasionally get as members of the bar from people who are not members of the bar, including those members from my own party.

The minister has raised real concerns, and he is right about this, that we would be prejudging Mr. Justice Robert's position in terms of being involved in a fair process. He has set out accurately that the complaint has been made against them. It is before the judicial council in Quebec and ultimately there could be a recommendation by the council that Mr. Justice Robert be removed. It is hard to imagine that would happen.

I should point out in the history of our country it has only happened once. In fact, it never was fully completed. It would have been I believe. It only got back to the House once in the history of the country. Therefore, it is hard to imagine that happening. However, if it did, somehow by us expressing our opposition to the comments made by Mr. Justice Robert, we would be prejudging, I do not see us doing that.

That is not my intent. If it ever got to the extreme that the judicial council recommended that Mr. Justice Robert to be removed from his office as a judge in the province of Quebec, the position I take today, which is the right of a sovereignist to sit on a bench is one that I believe is enshrined in our Constitution and specifically in our Charter of Rights and Freedoms, has nothing to do with the decision I might make at that point in my vote as a member of this chamber.

I do not see us crossing that line or coming anywhere near it. What we are saying is Canadians across the country have a right to take a position on political issues of the day, including on the right of the province of Quebec to separate, and that position will not disentitle them the right to sit on the bench.

I am fully supportive of the second part of the motion to have the justice committee investigate and I assume prepare a report as to how the judicial appointments should be handled at the federal level in the country.

Like other members who spoke today, we were involved through the summer last year in the two judicial appointments to the Supreme Court of Canada. Although we ultimately indicated our approval of the appointments, we were quite critical of the process. The minister has responded with a more detailed process, one with which I still have some criticism.

Before going to the process of what I think the committee would go through, let me say this. Again, this may be in response to feeling some degree of sensitivity to the comments made by the minister in his address to the House earlier today.

I do not believe there is anyone who spoke today who is not cognizant of the fact that we have an excellent judiciary in the country and the recognition that it may be the best in the world. I say that with a great deal of pride. I think it is a reflection of the educational process that we go through. Our educational process as lawyers is more extensive than the process in a number of other countries. I believe the attempt on our part of all political parties to try to make the process of judicial appointments as unbiased as possible contributes to that.

I believe that this division of powers which has been honoured with very few exceptions in our history since Confederation is all part of this. It is a model that I acknowledge and again with pride speak in favour of. It is a model recognized right across the world.

I will add this one additional point. Being in Windsor and having Detroit and the state of Michigan immediately across from us, I happen to be in a particular geographical area that allows me to be very cognizant of the differences between our system and the American system. I can see the differences in the quality of the judiciary. I can see the differences in the process and the effect it has on the quality of the judiciary.

The reality of that pride and the reality of just how good our judiciary is, I believe, also in part because we do not accept that it is perfect. It may never be perfect. In fact, there are times, and I think this is one of them, when there are some criticisms and I think a level of cynicism about political partisanship in the appointment process. It is there in the public. We know about some of the allegations that have come out of the Gomery commission up to this point.

We heard from the member for Charlesbourg—Haute-Saint-Charles about the investigative newspaper journalist who looked into the appointments in Quebec and how many of them had Liberal ties in the sense of making contributions to the Liberal Party before their appointments.

I can say based on my own experiences in my community, and this is somewhat cynical but also somewhat real, that if someone is a member of the Liberal Party and there is a Conservative administration in power in Ottawa, one generally does not bother applying for a judicial appointment even though one may be able to meet the merit test. Similarly, if it is the reverse, one does not apply. I also have to say that someone who is a member of the NDP probably does not ever bother applying. That is the reality. It is somewhat cynical but also somewhat real.

After we finished the process last year, I got back to the minister by correspondence and said that all the attention has been focused on the judicial appointments to the Supreme Court, but the reality is that we are missing the point in over-emphasizing this. The appointments to the Supreme Court are, with rare exceptions, made from a pool of judges who have already been appointed at the lower court level, usually at the Superior Court level and sometimes at the appeals level and the Federal Court level.

Thus, if we really want to remove any partisanship or perception of partisanship, we have to go back to the trial level and look at those appointments and the process as to how lawyers are appointed to the bench at that level. Until this week, the minister had not responded to that. He is now indicating that he is going to initiate a review process.

I have to say that when he stood up in the House and indicated how the process was going to work it was glaringly apparent to me that he missed the point. The point was that there is no parliamentary process. The House of Commons justice committee was not going to be involved in his process. I have said this to him directly. I think he is taking it under advisement and more seriously now.

It is crucial that the elected members of this House, the elected members for the country, are involved in developing the process so that we eliminate partisanship from it as best we can and also so we are ultimately comfortable in the process. We cannot be comfortable with it unless we are involved in helping to develop it.

I would urge the minister to rethink the process he is in and involve both the justice committee and/or other parliamentarians in the process right from the very beginning, as opposed to the two step process he suggested in the House earlier this week.

With regard to what I expect the committee to do if we proceed in that way, with a subcommittee of the justice committee, I expect our members to take a very close look at the models being used elsewhere in the country for appointments by our provincial governments for our provincial courts.

I must say that I am a strong admirer of the process in Ontario. I have looked at several others across the country. I am quite convinced that the Ontario model is best. I say that for a number of reasons, first because at one point I was being considered before this model was put into place and quite frankly I was scandalized by some of the suggestions that were made to me as to how I could ensure that I would be appointed a provincial court judge.

I have to say with some pride that I resisted those suggestions and I am not a member of that bench. I am here instead. Maybe that, in the overall fate of my life, is the appropriate result.

However, people should not have been put through that process. I was not the only one. A good friend of mine in London went through almost exactly the same process. I think we both felt very clearly that it was inappropriate and close to being a scandalous process.

With some degree of pride, I will say that the process has changed in Ontario, and because of all governments, although I am going to come back to one point when one government did try to undermine it. The Liberal government under David Peterson introduced the process. It was developed by Professor Peter Russell from Toronto. He was a strong advocate for it. He had done a lot of thinking about it and I think he came up with a process that has worked extremely well.

Under the NDP government that followed Peterson's, we continued with it. We made some changes. I am going to come back to that in a moment. Then the Harris Conservative government continued with it.

I want to make two points about our experience and the experience under the Conservative government. When the NDP first came into power in 1990 in Ontario, there were about half a dozen appointments being recommended by the committee. I am saying this for the minister because I think we have the same problem at the federal level. Those appointments did not reflect in any way a gender balance, even though there was very good reason to believe that one could be achieved and in fact we subsequently did. It did not reflect the multicultural, ethnocultural and visible minority composition of the province of Ontario, not at all.

I say again with some pride that our government rejected those appointments. We asked for them to be reviewed. At the same time, we looked at the composition of the advisory committee, because it really is the screening process. When that was done, it was quite clear to us that the province of Ontario was not adequately represented on that committee. With subsequent appointments as people's terms came up, we changed the composition so that it would reflect the sociological makeup of the province. From that time on, I think it worked very well.

It is interesting that under the Conservative government and the former premier, Mr. Harris, there was one period of time when there was almost a constitutional crisis in Ontario around judicial appointments. He wanted one particular appointment. The committee members refused to run the name through. They had reviewed it through an interview and screening process that is quite detailed and they felt that the candidate was not adequate to the task. The premier was stubborn enough to refuse to make any appointments. That logjam went on for the better part of 12 months before he finally stepped down as premier, but the committee, and I believe to its eternal credit, refused to budge, saying that the candidate was not acceptable.

Therefore, I believe the Ontario process is a strong one. It is a good one. The composition of the bench in Ontario has changed dramatically under it. It is much more reflective of the composition of the community as a whole.

Again for the minister, let me say that I think this is where the problem is with the process we have in place now. The advisory committees we have, and I am going to be gender-critical here, are still too much of the old boys' network. To give the minister his due, the first appointment of a woman in my community just happened a month or so ago. I congratulate him on making that appointment, but I have to ask why it took this long.

More than 50% of students at law schools are female. That has been the case for the better part of a decade. Numbers for the bar are nearly the same. But when we look at the bench it is not even close. The same can be said repeatedly in regard to visible minorities and a number of our ethnocultural communities that should have members from their communities represented on the bench. It is just not there. I believe that is because of the advisory committee process, which has to be looked at most closely.

Who are the people on that committee? I have to say to the minister that too many of them are politically affiliated to the minister's party, the party in government. Should we be making that committee more broadly based? I believe the answer is obviously yes, but there is a process. That is why we are supporting this motion. We believe that we should do the review and hopefully we will have a government in place that will accept the recommendations.

Mr. Speaker, discussions have taken place among all parties and I believe you would find consent for the following order:

That, at the conclusion of the present debate on today's opposition motion, all questions necessary to dispose of this motion be deemed put and a recorded division deemed requested and deferred until the end of government orders on Tuesday, June 7.

Dominic LeBlancLiberalParliamentary Secretary to the Leader of the Government in the House of Commons

Mr. Speaker, I rise on a point of order on a technical question concerning this bill, that is the need for royal recommendation.

In my opinion, Bill C-363 requires royal recommendation. This bill would require Canada Mortgage and Housing Corporation to distribute to the provinces any surplus from its reserve fund. A royal recommendation is needed in this case for two reasons.

First, the transfer of money to the provinces constitutes new spending. We could argue that the funds reserved by CMHC are not part of the government's funds and are an exception. Yet, earnings retained by CMHC are integrated annually into the Government of Canada's consolidated revenue fund.

Under Standing Order 79(1), royal recommendation is required for any bill for the appropriation of public revenue, and section 53 of the Constitution Act, 1867, is similar. The current interpretation of this section would include all the funds under the control of the crown and its officers.

According to sub-section 5(1) of the Canada Mortgage and Housing Corporation Act, CMHC is an agent of Her Majesty. By calling for a portion of the agency's assets to be transferred to the provinces, the bill affects public funds, that is to say moneys which would otherwise be allocated to the reserve fund or the Receiver General.

Secondly, in a ruling on May 9, 2005, the Acting Speaker indicated the need for a royal recommendation in order to change an allocation, saying:

As most members know, bills which involve new or additional spending for a distinct purpose must be recommended by the Crown. The royal recommendation is also required where a bill alters the appropriation of public revenue "under the circumstances, in the manner and for the purposes set out" in the bill. What this means is that a royal recommendation is required not only in the case where more money is being appropriated, but also in the case where the authorization to spend for a specific purpose is being significantly altered.

Now, a payment to the provinces does, obviously, constitute a purpose that was not set out in the original legislation, which stipulates that any surplus is retained by Canada.

For these two reasons I conclude—and I trust you will as well, Mr. Speaker—that this bill requires a royal recommendation. I hope that the Chair will look into all these elements carefully.

Mr. Speaker, I challenge the interpretation here that royal assent is required in the matter before us. It involves no additional funds. We are talking about the allocation of existing funds of Canada Mortgage and Housing Corporation. This transfer to the provinces is for exactly the same purposes—for the same activities—as those of Canada Mortgage and Housing Corporation. In fact, it is as if existing funds were delegated—and so, no additional funding. As regards the funds in the CMHC reserve, according to Marleau and Montpetit, at page 655 of House of Commons Procedure and Practice ,

An amendment is therefore inadmissible if it imposes a charge on the public treasury.

The matter before us does not involve a charge on the public treasury, but rather existing CMHC funds distributed among the provinces for purposes identical to those of CMHC.

The Corporation has agreements of this type with the provinces with regard to affordable housing and uses similar agreements. So no new funding for new activities is involved, because the activities were planned by CMHC. All we are saying is that, under C-363, the additional funds would be used by the provinces, thus distributed among them. They would be distributed on the basis of population for CMHC purposes. All that has changed is the agent. There are no additional funds. The type of activity is the same. The money simply goes to the provinces and territories, which carry out the activities of CMHC as if they were delegated.

Let us go back to page 655 of Marleau and Montpetit's House of Commons Procedure and Practice . I have no doubt, Mr. Speaker, that you will reach the same conclusions. CMHC has generated huge surpluses. They would be used by the provinces for social housing, in order to make housing more accessible to all Quebeckers and Canadians. A royal recommendation is not needed at this point—no supplementary votes, no treasury money and no new activities.

Mr. Speaker, discussions have taken place between all parties concerning the recorded division requested earlier today on the motion to hold a take note debate pursuant to Standing Order 53.1 on June 7. I believe if you seek it you would find consent to deem the motion carried.

The House resumed consideration of the motion that Bill C-363, an act to amend the Canada Mortgage and Housing Corporation Act (profits distributed to provinces), be read the second time and referred to a committee.